Notes and Articles for Law students

User Tools

Site Tools


Judicial Activism

Judicial activism is a judicial philosophy that the courts can and should go beyond the applicable law with the view of enhancing the utility of legislation for social betterment.

Black's Law Dictionary “Judicial activism is the philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.“

SP Sathe “A court giving a new meaning to the provision to suit the changing social or economic conditions or expanding the horizons of the rights of the individual is said to be an activist court.”

Important role of judicial activism

The role of judicial activism cannot be negated or overlooked. Proper implementation of fundamental rights could only become possible due to the advancement of judicial activism. Judiciary has taken active steps for Environmental protection. It has played a very significant role in providing justice to

  1. the underprivileged sections of the society;
  2. indigent individuals;
  3. socially and educationally backward classes;
  4. victims of trafficking and under trial prisoners.

The Supreme Court of India has held that access to justice is a fundamental right. Judiciary in India has played an active role in ensuring access to justice for the indigent persons, members belonging to socially and educationally backward classes, victims of human trafficking or victims of beggar, transgender, etc.

Since independence, the courts in India have been adopting innovative ways for redressing the grievances of the disadvantaged persons. In many cases, the Supreme Court has taken suo motu actions on mere postal letters disclosing the human rights violations in society. Human rights violations, published in the newspapers, have also been taken into judicial consideration. The court entertains the petitions which are being filed by the public spirited persons in the public interest. By doing so, the superior courts have liberated themselves from the shackles of the principle of locus standi and given the birth to the Public Interest Litigation in India.

In the case of Lakshmi Kant Pandey vs UOI1), the court acting on a PIL dealt with the malpractices indulged in by social organizations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents.

In Citizen for Democracy vs State of Assam2), the Supreme Court declared that the handcuffs and other fetters shall not be forced upon a prisoner while lodged in jail or while in transport or transit from one jail to another or to the court or back.

In the case of Parmanand Katara vs Union of India3), it was held to be a paramount obligation of every member of medical profession to give medical aid to every injured citizen as soon as possible, without waiting for any procedural formalities.

In the case of Vishal Jeet vs UOI, 4), in a response to a PIL, the Apex Court directed the State Governments and Union Territories to take appropriate action to eradicate trafficking in children which often leads to prostitution.

In Gaurav Jain vs Union of India, 5), the Supreme Court has held that the children of the prostitutes have the right to equality of opportunity, dignity, care, protection and rehabilitation so as to be part of the mainstream of social life without any pre-stigma attached on them.

In Kisher vs Orissa6), a PIL highlighted the sale of children in Kalahandi District of Orissa on account of extreme poverty. The Supreme Court directed to take measures to improve the conditions and also to prevent the trafficking in children.

In the case of Sheela Barse vs Union of India7), a dedicated social worker took up the case of helpless children below age of 16 illegally detained in jails. The Court observed that children in jail are entitled to special treatment. Children are national assets and they should be treated with special care.

In response to a Public Interest Litigation in Bandhua Mukti Morcha vs Union of India8), the Supreme Court appointed a Commission of Inquiry on child labour in carpet industries in Uttar Pradesh. With the help of local administration, these children were released.

Judicial activism turning out to be judicial intervention

There is a narrow demarcation between activism and overreach. Sometimes in the process of judicial activism, the judiciary intervenes too much and reflects its personal beliefs in the course of providing justice. The interpretation of law is the primary function of judiciary. But the courts, rather than interpreting the law, start making the law, issue guidelines and directions which is to be done by the legislature. Due to judicial overreach, conflict takes place between the legislature and judiciary. Besides this, the separation of powers on which the democracy stands is destroyed by the judicial overreach.

No judicial adventurism in the name of judicial activism

Courts have to function within the established parameters and constitutional bounds. Decisions should have a jurisprudential base with clearly discernible principles. Courts have to be careful to see that they do not overstep their limits because to them is assigned the sacred duty of guarding the Constitution. Policy matters, fiscal, educational or otherwise, are thus best left to the judgment of the executive. The danger of the judiciary creating a multiplicity of rights without the possibility of adequate enforcement will, in the ultimate analysis, be counter-productive and undermine the credibility of the institution. Courts cannot “create rights” where none exists nor can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles. With a view to see that judicial activism does not become “judicial adventurism”; the courts must act with caution and proper restraint.

They must remember that judicial activism is not an unguided missile -failure to bear this in mind would lead to chaos. Public adulation must not sway the judges and personal aggrandizement must be eschewed. It is imperative to preserve the sanctity and credibility of judicial process. It needs to be remembered that courts cannot run the government. The judiciary should act only as an alarm bell; it should ensure that the executive has become alive to perform its duties.9)

Judiciary not to assume functions of legislature or executive

The justification given for judicial activism is that the executive and legislature have failed in performing their functions. Even if this allegation is true, does it justify the judiciary in taking over the functions of the legislature or executive?

In our opinion it does not, firstly because that would be in violation of the high constitutional principle of separation of powers between the three organs of the State, and secondly because the judiciary has neither the expertise nor the resources for this.

Judiciary has its limits

The people must know that the courts are not the remedy for all ills in society. The problems confronting the nation are so huge that it will be creating an illusion in the minds of the people that the judiciary can solve all the problems. No doubt, the judiciary can make some suggestions or recommendations to the legislature or the executive. But these suggestions or recommendations cannot be binding on the legislature or the executive; otherwise there will be violation of the principle of separation of powers. The judiciary must know its limits and exercise judicial restraint. The people must also realize that the judiciary has its limits and cannot solve all their problems, despite its best intentions.10)

About the Author

Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on various subjects including Jurisprudence, Hindu Law and Environmental Laws.

AIR 1997 SC 3021
1995 (3) SCR 943
AIR 1989 SC 2039
1990 2 SCR 86
1997 8 SCC 114; AIR 1997 SC 3021
AIR 1989 SC 677
JT 1988 (3) 15
AIR 1991 SC 417
Dr. Justice AS Anand, former Chief Justice of India
Common Cause (A Regd. Society) vs Union of India, AIR 2008 SC 2116; JT 2008 (4) SC 317